Dutton v. State
Decision Date | 01 May 1914 |
Docket Number | 2. |
Citation | 91 A. 417,123 Md. 373 |
Parties | DUTTON v. STATE. |
Court | Maryland Court of Appeals |
June 24, 1914.
Appeal from Circuit Court, Dorchester County; Henry L. D. Stanford and Robley D. Jones, Judges.
James Dutton was convicted of assault with intent to rape, and he appeals. Reversed, and new trial awarded.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, and CONSTABLE, JJ.
Thomas W. Simmons, of Cambridge, for appellant
V Calvin Trice, of Cambridge, and Edgar Allan Poe, Atty. Gen for the State.
The court being of the opinion that there was error in taking the testimony of the prosecuting witness, Margaret Gillis, out of the presence of the prisoner, under the circumstances set out in the record, the judgment will be reversed. An opinion will hereafter be filed giving the reasons for the conclusions reached by the court.
Judgment reversed, and new trial awarded.
The appellant was convicted of an assault with intent to rape, and was, by virtue of section 17 of article 27, Code of Public General Laws, chapter 366 of Acts of 1908, sentenced to be hung. The record originally transmitted to this court was defective, but on application of the appellant a writ of diminution was ordered. The appellant then applied to the lower court to have the record in that court corrected, so as to have what occurred properly stated. In Greff v. Fickey, 30 Md. 75, after a writ of diminution was issued by this court, for the purpose of having some alleged errors in the record corrected, a motion was made to have the docket entries in the lower court amended and completed, but that court overruled the motion because it was of opinion that, the term having passed, and the Court of Appeals having ordered that the docket entries be returned as they actually stood upon the docket, it would be improper to grant the motion. This court, through Bartol, C.J., said:
That course was also approved in Hays v. P. W. & B. R. R. Co., 99 Md. 413, 58 A. 439, and Koch v. Wimbrow, 111 Md. 21, 73 A. 896.
The lower court accordingly very promptly and properly granted the motion of the appellant in this case, and has made certain corrections which we will insert in this opinion, so that it may be seen how the record now stands; the action of that court in reference to the changes requested being final and not subject to review on appeal. Greff v. Fickey, supra. By an order in writing signed by the two judges who sat below, the clerk was directed to and did make the changes, additions, and corrections in the docket entries and record, so as to now read as follows:
A motion for a new trial was made "short" the day the appellant was sentenced (November 14, 1913), and on November 18th a formal motion in writing was filed. On December 23d that motion was overruled, and on January 24, 1914, which was during the same term of court, a motion to strike out the judgment and sentence was made, which was overruled, and this appeal was taken to this court. That the action of the court in overruling the motion for a new trial is not subject to review by us is too well settled to require or justify the citation of authorities, but its action on the motion to strike out the judgment and sentence is reviewable by us. The ruling on such a motion was reviewed by us in Hommer v. State, 85 Md. 562, 37 A. 26, and other cases which might be cited, but we are confined to what appears on the face of the record itself, and there is no bill of exceptions, agreed statement of facts, or substitute for either of them. We will consider the questions referred to in the motion, but in somewhat different order from that in which they are therein stated.
1. Objection is made that the appellant was not arraigned. An assault with intent to rob, murder, or commit a rape is not a felony in this state. The punishment for those crimes is provided for in one section of the Code, and has been for many years, being now section 17 of article 27. In Hollohan v. State, 32 Md. 399, it was said:
See, also, State v. Dent, 3 Gill & J. 12.
The distinction made in some jurisdictions that crimes punishable by death or confinement in the penitentiary are felonies and others misdemeanors has never existed in this state, but here only those are felonies which were such at common law, or have been so declared by statute. The fact that a crime is punishable in the penitentiary or is "infamous" does not make it a felony in this state. It was said in State v. Bixler, 62 Md. 360:
'
On the same page it is also said:
'
In Garitee v. Bond, 102 Md. 379, 62 A. 631, 111 Am. St. Rep. 385, 5 Ann. Cas. 915, Judge Schmucker, in delivering the opinion of the court, referred to the case of Ex parte Wilson, 114 U.S. 422, 5 S.Ct. 938, 29 L.Ed. 89, where the Supreme Court held that the provision in the United States Constitution which prohibits prosecution for "a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury" must be considered not merely from the standpoint of the character of the crime, but also from the nature of the consequences to the accused, if he should be found guilty, and went on to say:
"But even in Wilson's Case it was held that at common law prior to the Declaration of Independence 'it was already established law that the infamy which disqualified a convict to be a witness depended upon the character of his crime and not upon the nature of his punishment."'
Again it was there said, "The authorities generally, though not with entire uniformity, hold that the infamous nature of a crime was determined at common law by the character of the act itself, and not by the penalty inflicted for its commission," and after referring at length to State v Bixler, supra, it was distinctly held that the crime considered in Garitee v. Bond could not be...
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"incorporation" of the Criminal Procedure Amendments: the View from the States
...of England, and the trial by Jury, according to the course of that law" (quoting MD. CONST. dec. of rts. art. 5)); accordDutton v. State, 91 A. 417, 422-23 (Md. 1914); see also Oliver, 333 U.S. at 268 n.20 (counting Maryland among states where right to public trial always was protected). 23......
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...n.19. (69) The Maryland Court of Appeals has apparently interpreted the state constitution as prohibiting secret trials. Dutton v. State, 91 A. 417, 422-23 (Md. 1914). In re Oliver, 333 U.S. at 268 n.20. (70) Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980). (71) Id. (72) Id. at 58......